Minister of Justice and Others v Estate Stransham-Ford

• Jurisdiction: South Africa
• Citation: 2017 (3) SA 152 (SCA)

Minister of Justice and Others v Estate Stransham-Ford
2017 (3) SA 152 (SCA)

2017 (3) SA p152

Citation	2017 (3) SA 152 (SCA)
Case No	531/2015; [2016] ZASCA 197
Court	Supreme Court of Appeal
Judge	Lewis JA, Seriti JA, Wallis JA, Dambuza JA and Schippers AJA
Heard	December 6, 2016
Judgment	December 6, 2016
Counsel	L Nkosi-Thomas SC (with S Poswa-Lenotholi and N Mgcina) for the first to third appellants, the Ministers of Justice and Health, and the National Director of Public Prosecutions.; CH van Bergen (with AJ D'Oliviera) for the fourth appellant, the Health Professions Council of South Africa.; HB Marais SC (with HP van Nieuwenhuizen and CA du Plessis) for the respondent, the estate of Mr Stransham-Ford.; RS Willis (with T Mafukidze and A Schluep) for the first amicus curiae, Doctors for Life International NPC.; D Jordaan, the second amicus curiae, in person.; MJ Engelbrecht (with A Montzinger) for the third amicus curiae, Cause for Justice.; NH Maenetje SC (with G Snyman) for the fourth amicus curiae, the Centre for Applied Legal Studies.; D Cooke for the fifth amicus curiae, Justice Alliance of South Africa.

Flynote : Sleutelwoorde B

Medicine — Euthanasia — Assisted suicide — High Court order that doctor could administer or prescribe lethal agent to end terminally ill man's life — Order set aside.

C Medicine — Euthanasia — Assisted suicide — Legality of physician administered euthanasia and physician assisted suicide — Survey of South African and foreign law.

Headnote : Kopnota

Mr Stransham-Ford, who had terminal cancer, applied for and obtained an order that a doctor could administer or prescribe a lethal agent to end his life; [*] D that the doctor would be exempted from criminal or disciplinary proceedings; and that the common law be developed to allow for such euthanasia or assisted suicide (see [4]). Unbeknownst though to the judge, Mr Stransham-Ford had died two hours before the granting of the order. Here, the Ministers of Justice and Health, the National Director of Public Prosecutions, E and the Health Professions Council of South Africa appealed to the Supreme Court of Appeal, which set aside the order for the following reasons.

(1)

Mr Stransham-Ford's cause of action died with him, and on his death there was no claim that could be passed to his estate or that could be adjudicated upon by the court. This was not disturbed by the fact that his case raised F constitutional issues (see [19] – [21]).

(2)

The order was based on an inadequate consideration of, and a misunderstanding of the law, and the issues were insufficiently canvassed. So, for instance, in relation to euthanasia, there was no consideration whether the position on consent should be changed; and the cases did not suggest that assisting suicide would be unlawful in all circumstances (see [28] – [29], G [41], [54], [57], [69] – [71] and [73] – [74]).

(3)

The factual basis for the order was not established. Thus, Stransham-Ford's prediction of the manner of his death absent assisted suicide or euthanasia was not confirmed; nor was his mental capacity or willingness to go through with either course (indeed this was disconfirmed by later evidence); and there was no evidence that there was a doctor willing to assist (see [5], H [81] – [83], [85] and [89]). There was, in addition, inadequate evidence on which to decide the constitutional issues (see [95], [97] and [100]).

Appeal upheld, and order set aside (see [104]).

Cases cited

Southern Africa

Argus Printing and Publishing Co Ltd and Others v Esselen's Estate 1994 (2) SA 1 (A) ([1994] 2 All SA 160): referred to I

Bernstein and Others v Bester and Others NNO 1996 (2) SA 751 (CC) (1996 (4) BCLR 449; [1996] ZACC 2): referred to

2017 (3) SA p153

Bruce and Another v Fleecytex Johannesburg CC and Others A 1998 (2) SA 1143 (CC) (1998 (4) BCLR 415; [1998] ZACC 3): dictum in para [8] applied

Carmichele v Minister of Safety and Security and Another (Centre for Applied Legal Studies Intervening) 2001 (4) SA 938 (CC) (2002 (1) SACR 79; 2001 (10) BCLR 995; [2001] ZACC 22): referred to

Clarke v Hurst NO and Others 1992 (4) SA 630 (D): referred to B

Director of Public Prosecutions, Transvaal v Minister of Justice and Constitutional Development and Others 2009 (4) SA 222 (CC) (2009 (2) SACR 130; 2009 (7) BCLR 637; [2009] ZACC 8): followed

Everfresh Market Virginia (Pty) Ltd v Shoprite Checkers (Pty) Ltd 2012 (1) SA 256 (CC) (2012 (3) BCLR 219; [2011] ZACC 30): referred to

Ex parte Die Minister van Justisie: In re S v Grotjohn 1970 (2) SA 355 (A): considered C

Executors of Meyer v Gericke 1880 Foord 14: referred to

Fischer and Another v Ramahlele and Others 2014 (4) SA 614 (SCA) ([2014] ZASCA 88): referred to

Government of the Republic of South Africa v Ngubane 1972 (2) SA 601 (A): referred to D

Government of the Republic of Zimbabwe v Fick and Others 2013 (5) SA 325 (CC) (2013 (10) BCLR 1103; [2013] ZACC 22): referred to

Hoffa NO v SA Mutual Fire & General Insurance Co Ltd 1965 (2) SA 944 (C): referred to

Independent Electoral Commission v Langeberg Municipality 2001 (3) SA 925 (CC) (2001 (9) BCLR 883; [2001] ZACC 23): referred to E

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MEC for Education, KwaZulu-Natal, and Others v Pillay 2008 (1) SA 474 (CC) (2008 (2) BCLR 99; [2007] ZACC 21): referred to

Mighty Solutions t/a Orlando Service Station v Engen Petroleum Ltd and Another 2016 (1) SA 621 (CC) (2016 (1) BCLR 28; [2015] ZACC 34): F dictum in para [39] applied

Minister of Police v Mboweni and Another 2014 (6) SA 256 (SCA) ([2014] 4 All SA 452; [2014] ZASCA 107): referred to

Minister of Safety and Security and Another v Carmichele 2004 (3) SA 305 (SCA) (2004 (2) BCLR 133; [2003] 4 All SA 565; [2000] ZASCA 149): referred to G

National Coalition for Gay and Lesbian Equality and Others v Minister of Home Affairs and Others 2000 (2) SA 1 (CC) (2000 (1) BCLR 39; [1999] ZACC 17): dictum in fn 18 applied

Pheko and Others v Ekurhuleni Metropolitan Municipality 2012 (2) SA 598 (CC) (2012 (4) BCLR 388; [2011] ZACC 34): referred to

Pienaar and Marais v Pretoria Printing Works Ltd and Others 1906 TS 654: H referred to

Prince v President, Cape Law Society, and Others 2001 (2) SA 388 (CC) (2001 (1) SACR 217; 2001 (2) BCLR 133; [2000] ZACC 28): dictum in paras [12] – [16] and [22] applied

Qoboshiyane NO and Others v Avusa Publishing Eastern Cape (Pty) Ltd and Others 2013 (3) SA 315 (SCA) ([2012] ZASCA 166): referred to I

R v Peverett 1940 AD 213: considered

S v De Bellocq 1975 (3) SA 538 (T): referred to

S v Gordon 1962 (4) SA 727 (N): considered

S v Hartmann 1975 (3) SA 532 (C): referred to

S v Hibbert 1979 (4) SA 717 (D): referred to

S v Marengo 1991 (2) SACR 43 (W): referred to J

2017 (3) SA p154

S v Nkwanyana 2003 (1) SA 303 (W): referred to A

S v Robinson and Others 1968 (1) SA 666 (A): considered

S v Smorenburg 1992 (2) SACR 389 (C): referred to

S v Williams 1986 (4) SA 1188 (A): referred to

South African Associated Newspapers Ltd and Another v Estate Pelser 1975 (4) SA 797 (A): referred to

Stoffberg v Elliot 1923 CPD 148: referred to B

Stransham-Ford v Minister of Justice and Correctional Services and Others 2015 (4) SA 50 (GP): reversed on appeal

Willenburg v Willenburg and Another (1908) 25 SC 775: dictum at 777 applied.

Canada

Carter v Canada (Attorney General) 2012 BCSC 886 (Can LII): referred to C

Carter v Canada (Attorney General) 2015 SCC 5: referred to

Malette v Shulman (1990) 72 OR (2d) 417: referred to

Nancy B v Hôtel-Dieu de Québec (1992) 86 DLR (4th) 385: referred to

Rodriguez v British Columbia (Attorney General) [1993] 3 SCR 519 D (1993 Can LII 75 (SCC)): referred to.

England

Airedale NHS Trust v Bland 1993 AC 789 (HL): referred to

Pretty v Director of Public Prosecutions [2001] UKHL 61: referred to

R (on the application of Nicklinson and another) v Ministry of Justice [2014] UKSC 38: E referred to

R v Adams 1957 Crim LR 365: referred to

R v Kennedy [2007] UKHL 38: referred to.

European Court of Human Rights

Gross v Switzerland (2014) 58 EHRR 7: referred to

Haas v Switzerland (2011) 53 EHRR 33: referred to F

Koch v Germany (2014) 58 EHRR 6: referred to

Pretty v United Kingdom (2002) 35 EHRR 1: referred to.

Ireland

Fleming v Ireland [2013] IESC 19: referred to.

New Zealand G

Auckland Area Health Board v Attorney-General [1993] 1 NZLR 235 (HC): referred to

Seales v Attorney-General [2015] NZHC 1239: referred to.

United States of America H

Baxter v State of Montana 2009 MT 449: referred to

Cruzan v Director, Missouri Department of Health 497 US 261 (1990): referred to

Greenlaw v United States 128 S Ct 2559 (2008): referred to

In re Joseph G 667 P 2d 1176 (SC California 1983): referred to

In the matter of Karen Quinlan 70 NJ 10; 355 A 2d 647 (NJ 1976): referred to I

Morris v Brandenburg New Mexico Supreme Court case No S-1-SC-35478: referred to

Re Conroy 486 A 2d 1209 (NJSC 1985): referred to

Schloendorff v Society of New York Hospital (1914) 105 NE 92: referred to

Spectator Motor Service Inc v Walsh 139 F 2d 809 (1944): referred to J

2017 (3) SA p155

United States v Samuels 808 F 2d 1298 (8th Cir 1987): dictum at 1301 followed A

Washington v Glucksberg 521 US 702 (1997): referred to.

Case Information

L Nkosi-Thomas SC (with S Poswa-Lerotholi and N Mgcina) for the first to third appellants, the Ministers of Justice and Health, and the National Director of Public Prosecutions. B

CH van Bergen (with AJ D'Oliviera) for the fourth appellant, the Health Professions Council of South Africa.

HB Marais SC (with HP van Nieuwenhuizen and CA du Plessis) for the respondent, the estate of Mr Stransham-Ford.

RS Willis (with T Mafukidze and A Schluep) for the first amicus curiae, C Doctors...